K.L.C.-S. v. D.W.S. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
K.L.C.-S. A/K/A K.L.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
D.W.S., : No. 1254 EDA 2019
:
Appellant :
Appeal from the Order Entered April 24, 2019,
in the Court of Common Pleas of Bucks County
Family Division at No. A06-2015-60567-C
BEFORE: LAZARUS, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 15, 2020
K.L.C.S. a/k/a K.L.C. (“Mother”) appeals from the order dated April 22,
2019, and entered on April 24, 2019, that held her in contempt of the existing
custody order between her and D.W.S. (“Father”) regarding their two minor
children, J.S. (a female, born in May of 2002), and J.S. (a male, born in
October of 2003) (collectively, “the Children”). 1 Additionally, the order
required Mother to undergo in-person co-parenting counseling sessions, and
once completed, Mother and Father to jointly complete co-parenting
1 In May of 2020, the parties’ daughter, J.S., born in May of 2002, one of the
two subject children herein, became emancipated. The parties also have an
older daughter, J.S., born in January of 2000 and emancipated in January of
2018, who is not a subject child in this appeal.
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counseling, and Mother to pay for the co-parenting counseling for both parties.
We affirm.
We also agree with the trial court that Father’s request for this court to
impose his counsel fees and costs on Mother should be granted, as Mother’s
behavior has been obdurate, and her appeal is frivolous. Thus, we affirm the
order, grant Father’s request for Mother to pay Father’s counsel fees and
costs, and remand to the trial court to determine and impose the amount of
those fees and costs.
In its Pa.R.A.P. 1925(a) opinion, the trial court ably set forth the factual
background and procedural history of this appeal. (Trial court opinion,
5/16/19 at 1-2.) Relevant to the instant appeal, on March 28, 2016, Mother
and Father participated in their first Court Conciliation and Evaluation Service
(hereinafter “CCES”) evaluation, involving the Children and their since-
emancipated daughter, J.S. Eventually, the parties entered into a stipulated
custody agreement, which the court entered as an order in April of 2017. In
August of 2017, Father filed a petition for special relief to hold Mother in
contempt of the then-existing stipulated custody order, and for modification
of the custody order and his counsel fees.
In the custody order dated and entered on February 6, 2018, the trial
court deferred the contempt matter filed in August of 2017, and directed the
parties to participate in a second, updated CCES evaluation. The order
provided that, notwithstanding that the eldest child was emancipated, the
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contempt matter, as it related to her, was deferred for consideration in the
CCES evaluation and would be considered at a hearing in June or July of 2018.
On February 8, 2018, the trial court also entered a second order dated
February 6, 2018, that directed the parties to participate in the CCES program
or risk sanctions set forth in Pa.R.C.P. 1915.8(g). This order included a
provision captioned “CONSENT AND WAIVER” which both parties signed
and dated on February 6, 2018, that stated that the CCES evaluation report
could be admitted into evidence in the custody litigation between the parties.
The Consent and Waiver also provided that the parties waived the
presentation of evidence by testimony of the person who prepared the
CCES report in court and the right to call that person as a witness; the right
to subpoena the notes and the person who prepared the report to a deposition;
and the right to subpoena from the CCES evaluator any medical,
psychological, or education records used in preparing the CCES evaluation.
Further, the Consent and Waiver provided that the parties waived the right to
challenge the qualifications, observations, reasoning, and conclusions of the
expert witness who prepared the CCES evaluation and report, and agreed not
to subpoena or otherwise call that person as a witness. By signing the Consent
and Waiver, the parties expressly did not waive their right to a full hearing
before the court or the right to call any other expert witness of their own.
Finally, the Consent and Waiver provided that the parties had voluntarily,
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knowingly, and intelligently agreed to participate in the procedure. (Trial court
order, 2/8/18 at 1-2 (unpaginated).)2
Subsequently, the CCES report was filed on May 9, 2018. At the custody
hearing on June 25, 2018, the trial court, the Honorable Jeffrey G. Trauger,
entered a custody order “based on the agreement” of Mother and Father with
regard to the Children, wherein they share legal and physical custody of the
Children.
The June 25, 2018 custody order had several provisions relevant to the
present appeal, including legal custody, physical custody, vacation, right of
first refusal, and other provisions.
On December 17, 2018, Father filed a “Petition for Contempt and
Counsel Fees,” alleging Mother had violated the June 25, 2018 custody order.
Additionally, Father asserted Mother was attempting to estrange the Children
from him, as she had done with the parties’ eldest child, J.S., from whom he
is completely estranged. Father requested the trial court to find Mother in
willful contempt of its June 25, 2018 order, and direct that: a) Mother shall
honor the Right of First Refusal provision in the June 25, 2018 Order at all
times or suffer the loss of custodial time with the children; b) Mother shall be
committed to the Bucks County Correctional Facility until she writes a letter
to the court indicating how she intends to address her actions, which
2The record reflects that, on November 23, 2015, the parties signed and dated
an identical Consent and Waiver with regard to the first CCES report.
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undermine Father’s relationship with the Children; c) Mother shall submit to
co-parenting counseling with Father at Mother’s sole cost to actively address
Mother’s mental health issues and to address how she will cease undermining
Father’s relationship with the Children; and d) such other relief as the trial
court would deem appropriate and just. (Petition for contempt and counsel
fees, 12/17/18 at 4 (unpaginated).)
On January 14, 2019, Mother’s present counsel, Attorney Rich Raiders,
entered his appearance. 3 On January 15, 2019, a custody conference
occurred before a custody conference officer, Attorney Lisa Prezelski, and she
filed her report.
The trial court held an evidentiary hearing on March 26, 2019, at which
Mother was present with Attorney Raiders, and Father was present with his
counsel, Attorney Susan J. Smith. At the commencement of the hearing, the
trial court had an exchange with counsel concerning the court’s intention to
admit the two CCES reports, to which Mother’s counsel objected on the basis
that there was no one present to authenticate them. The trial court stated:
THE COURT: Well, counsel, with all due respect, under
the rules of this [c]ourt and the consent that was
signed by your client, a CCES report can be introduced
without the presence -- in fact, the presence of the
evaluator is specifically prohibited under the CCES
3Attorney Sandra W. Morris represented Mother, until August 7, 2017, when
she withdrew as counsel, and Attorney David T. Schnarrs entered his
appearance. Attorney Schnarrs’ withdrawal as counsel does not appear in the
certified record.
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process, so your objection is overruled. That report is
part of the record in this case. . . .
Notes of testimony, 3/26/19 at 3.
On April 24, 2019, the trial court entered an order dated April 22, 2019,
providing:
AND NOW, this 22[nd] day of April, 2019, in
accordance with the ruling made at the hearing on
March 26, 2019, it is hereby ORDERED and DECREED
and DIRECTED that:
1. Mother is found in contempt of the
[c]ourt’s Order dated June 25, 2018.
2. On April 6, 2019, Mother is to take the two
minor children to a location selected by
Father to secure their passports. If said
location is no longer available, Father has
10 days from that date, to designate a
new location.
3. Father is to maintain possession of the
minor children’s passports.
4. The parties must agree on any out of
country travel for the children. Consent
for travel outside of the country shall not
be unreasonably withheld. If a party
unreasonably withholds consent, that is
contempt of this Order.
5. Within 90 days of this Order, Mother must
complete an in-person co-parenting
course. Proof of the completion of
Mother’s co-parenting course must be
provided to Father in a timely manner.
6. Once Mother completes said co-parenting
course and provides proof of attendance
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thereof to Father, the parties shall attend
co-parenting counseling for at least six (6)
sessions. If the parties cannot agree upon
a co–parenting counselor within twenty
days of Mother completing the
co-parenting course, the parties’ counsel
shall promptly submit three names to
chambers for the [c]ourt to select the
co-parenting counselor.
7. The cost of all co-parenting counseling,
together and individually, along with the
cost of the Mother’s co-parenting course,
shall be paid exclusively by Mother.
Trial court order, 4/22/19.4
On April 26, 2019, Mother timely filed a notice of appeal, along with a
concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(a)(2)(ii) and (b). On May 10, 2019, Attorney Smith withdrew
her appearance for Father. He is proceeding pro se in this appeal. In his
brief, Father requested this court to award his counsel fees and costs against
Mother based on her:
pattern of obdurate behavior, which has been
demonstrated over and over again. Her frivolous
appeal serves merely as the capstone of Mother’s
non-compliance with custody orders.
4The trial court stated that it was not imposing a sanction on Mother for her
contempt, which would render this order not appealable. Rhoades v. Pryce,
874 A.2d 148 (Pa.Super. 2005), appeal denied, 587 Pa. 724, 899 A.2d 1124(2006). However, we find that by imposing all costs of the co-parenting
counseling, together and individually to be paid exclusively by Mother, this is
a significant sanction which renders the contempt order final and appealable.
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On September 4, 2020, Father, acting pro se, filed a motion for
post-submission communication, asserting that the order on appeal against
Mother:
exemplifies a pattern of obdurate behavior which has
been demonstrated over and over again and the
frivolous appeal serves merely as the capstone of
Mother’s non-compliance with custody orders.
Consistent with the Conclusion within the Brief for
Appellee, I am requesting that legal fees be
reimbursed totaling $1669.50.
Father’s “Application for Post-Submission Communication” at 1.
On September 10, 2020, Mother’s counsel filed an “Answer to
Application for Post-Submission Communication.” Mother asserts that her
appeal is not frivolous and that we should dismiss, with prejudice, Father’s
motion. She further suggests that Attorney Smith, after withdrawing, might
have been involved in preparing Father’s pro se brief on appeal and, possibly,
in other matters in this litigation, and that we should refer her to our Supreme
Court’s Disciplinary Board.5
In her brief on appeal, Mother raises two issues:
1. Did the trial court deny appellant her procedural
due process rights by admitting into evidence
and incorporating into the trial record a report
of a custody evaluation containing opinion as a
business record contrary to the Pennsylvania
Supreme Court opinion in In re: A.J.R.-H. and
I.G.R.-H., Appeal of K.J.R., Mother, 188 A.3d
1157, 1167 (Pa. 2018) prohibiting the
admission of opinion as a business record
5 We decline Mother’s request.
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without offering the opportunity for the parties
to examine any witnesses supporting hearsay
opinion evidence?
2. Did the trial court deny appellant her procedural
due process rights by admitting such hearsay
opinion evidence concerning the minor children
who were the subject of the custody matter
without providing the opportunity for the
children to appear before the court, especially in
light of the admission of opinion as business
records?
Mother’s brief at 2.
In her brief, Mother summarizes her argument as follows:
The CCES reports were offered, and immediately
accepted, as exhibits at trial. These exhibits were not
properly authenticated, and both exhibits contained
multiple levels of hearsay not satisfying any of the
mandates of the business record exception. It is well
established that each level of hearsay must fall into an
exception. It is well established that records
containing medical diagnosis and opinion are
inadmissible unless the declarant testifies and is
subjected to cross-examination. Recent Supreme
Court precedent[, In re: A.J.R.-H. and I.G.R.-H,
supra,] reinforces the right to confront witnesses
offering opinion as a business record. Therefore, the
records presented should have been rejected as
hearsay. The admission of record was not a harmless
error.
Instead, the Bucks County Court of Common Pleas
requires anyone seeking a custody evaluation to
execute an adhesion contract requiring all parties to
unconstitutionally waive their right to confront the
custody evaluator. The CCES order in Bucks County
must be issued on the standard Bucks County Custody
Evaluation Order which the parties are not permitted
to amend.
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The trial court also erred in not allowing the children
to be [sic] testify regarding the alleged alienation.
The only evidence of alleged alienation consisted of
the CCES report, without the opportunity to confront
the author of the report and its opinion evidence. At
no point did the trial court evaluate any evidence of
actual alienation of the children. The trial court
directly stated that the minor children had their say
with CCES and were not entitled to speak to the judge.
Without being able to testify that the alienation did in
fact occur, there can be no determination that any
alienation existed.
Mother’s brief at 4-5.
With regard to civil contempt, this court has set forth our scope and
standard of review as follows:
In reviewing a trial court’s finding on a contempt
petition, we are limited to determining whether the
trial court committed a clear abuse of discretion. This
Court must place great reliance on the sound
discretion of the trial judge when reviewing an order
of contempt.[Footnote 7]
[Footnote 7] To sustain a finding of civil
contempt, the complainant must prove
certain distinct elements by a
preponderance of the evidence: (1) that
the contemnor had notice of the specific
order or decree which he is alleged to have
disobeyed; (2) that the act constituting the
contemnor’s violation was volitional; and
(3) that the contemnor acted with
wrongful intent. . . .
P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa.Super. 2012) (quotation and citations
omitted).
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Additionally, we have stated:
When considering an appeal from an Order holding a
party in contempt for failure to comply with a court
Order, our scope of review is narrow: we will reverse
only upon a showing the court abused its discretion.
The court abuses its discretion if it misapplies the law
or exercises its discretion in a manner lacking reason.
To be in contempt, a party must have violated a court
Order, and the complaining party must satisfy that
burden by a preponderance of the evidence.
....
Further, with regard to contempt orders, this Court
has stated:
Each court is the exclusive judge of
contempts against its process. The
contempt power is essential to the
preservation of the court’s authority and
prevents the administration of justice
from falling into disrepute. When
reviewing an appeal from a contempt
order, the appellant [sic] court must place
great reliance upon the discretion of the
trial judge. On appeal from a court order
holding a party in contempt of court, our
scope of review is very narrow. We are
limited to determining whether the trial
court committed a clear abuse of
discretion.
Harcar v. Harcar, 982 A.2d 1230, 1234-1235 (Pa.Super. 2009) (some
quotations and some citations omitted). Moreover, “[t]his Court defers to the
credibility determinations of the trial court with regard to the witnesses who
appeared before it, as that court has had the opportunity to observe their
demeanor.” Id. at 1236 (quotation omitted).
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Moreover, “[d]ue process requires that the litigants receive notice of the
issues before the court and an opportunity to present their case in relation to
those issues.” Brooks-Gall v. Gall, 840 A.2d 993, 997 (Pa.Super. 2003)
(recognizing that dependency proceedings implicate due process concerns).
It is well settled that “procedural due process requires, at its core, adequate
notice, opportunity to be heard, and the chance to defend oneself before a fair
and impartial tribunal having jurisdiction over the case.” S.T. v. R.W., 192
A.3d 1155, 1161 (Pa.Super. 2018). “The right of a litigant to in-court
presentation of evidence is essential to due process; in almost every setting
where important decisions turn on questions of fact, due process requires an
opportunity to confront and cross-examine adverse witnesses.” M.O. v. F.W.,
42 A.3d 1068, 1072 (Pa.Super. 2012). “A question regarding whether a due
process violation occurred is a question of law for which the standard of review
is de novo and the scope of review is plenary.” Commonwealth v. Tejada,
161 A.3d 313, 317 (Pa.Super. 2017).
The trial court discussed Mother’s issues together, as follows.
The first issue before the Superior Court is whether
Mother’s procedural due process rights were denied
“by admitting into evidence and incorporating into the
trial record a report of custody evaluation.” [The trial
court] initially note[s] that Mother does not dispute
having signed the CCES consent and waiver form to
participate in the CCES evaluation. That form states
as follows: “I hereby consent to psychological
services to be performed by Court Conciliation and
Evaluation Services. I understand that the purpose of
these services is to help us decide how our family can
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best meet the needs of the children and adults, and to
provide the court with the conclusions of an
independent expert.” (CCES Consent and Waiver,
dated February 6, 2018, hereinafter “CCES Consent
and Waiver.”).
By signing such consent and waiver, Mother affirmed
that “I stipulate to the admission of the report into
evidence. I understand that normally evidence is
offered by a witness testifying in court. I am waiving
the necessity of the presentation of testimony by the
person who prepares the report.” Id. Further
language included the averment that “I waive the right
to subpoena the notes and the person who prepares
the report to a deposition or testify in court. I
understand that normally there is right to challenge
the qualifications, observations, reasoning and
conclusion of the expert witness by questioning that
witness. I am waiving my right to question this
witness on the record. I agree not to subpoena or
otherwise call this witness.” Id.However, the Consent clearly states that “I do not
waive my right to a full hearing before the court or my
right to call any other expert witness of my own.” Id.Mother enjoyed the benefit of a “full hearing” before
[the trial court] on March 26th, [2019,] but appears
to be looking for any grounds, no matter how
frivolous, to appeal the order handed down following
said hearing.
Mother’s assertion that her procedural due process
rights were denied by admitting into evidence and
incorporating into the trial record the parties’ CCES
evaluation report, [sic] flies in the face of her own
signature on the Consent and Waiver form, which
explicitly states that she agreed to the admissibility of
said report as part of the trial record. Further, it
contained language of a clear waiver of any right to
subpoena or cross-examine the CCES evaluator. We
also note that Mother was represented by counsel at
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the time she signed the subject CCES Evaluation
Consent and Waiver. (CCES “Consent and Waiver”).
Mother claims that admitting the CCES report was
contrary to the Pennsylvania Supreme Court opinion
in In re A.J.R.-H., prohibiting the admission of
opinion as a business record without offering the
opportunity for the parties to examine any witnesses
supporting hearsay opinion evidence. In re
A.J.R.-H., 188 A.3d 1157, 1167 (Pa. 2018). This case
is clearly not applicable to the instant case. In re
A.J.R., [sic] involved a termination of parental rights
in the Orphan’s Court of Berks County. There, 167
exhibits were admitted en masse to the hearing, when
Children and Youth Services (CYS) filed petitions to
terminate the parental rights of mother and father.
Those documents included CYS’s summary of exhibits
and of the case, which were not admissible under the
business records exception.
The instant case does not involve the termination of
parental rights, nor [sic] business records being
admitted as an exception to the hearsay rule. As
indicated above, the CCES report was admitted based
on both Mother and Father signing the CCES Consent
and Waiver.
The second issue before the Superior Court is whether
Mother’s procedural due process rights were infringed
because, as she contends, her minor children should
have been allowed to testify in open court to the
custody matter at hand.
However, the weight of both statutory and case law is
against Mother’s arguments. It is clear that the [t]rial
[c]ourt has discretion whether or not to have minor
children testify at custody hearings.
Pa.R.C.P. 1915.11(b) expressly provides this
discretion to the Trial Court and does not require that
the court interview a child in a custody matter.
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Likewise, Pa.R.C.P. 1915.11(c) does not mandate a
child’s attendance at a custody hearing.
More specifically, Pa.R.C.P. 1915.11, entitled
“Appointment of Attorney for Child. Interview of
Child. Attendance of Child at Hearing or Conference”
provides, in relevant part:
(b) The court may interview a child, whether
or not the child is the subject of the action,
in open court or in chambers. The
interview shall be conducted in the
presence of the attorneys and, if
permitted by the court, the parties. The
attorneys shall have the right to interview
the child under the supervision of the
court. The interview shall be part of the
record.
(c) Unless otherwise directed by the court,
the child who is the subject of the action
shall not be required to attend a hearing
before the court or a conference.
Pa.R.Civ.P. 1915.11.
Case law upholds the plain language of
Pa.R.Civ.P. 1915.11, which renders interviewing a
child in a custody proceeding optional. In the case of
T.D. v. E.D., [194 A.3d 1119 (2018),] the
Pennsylvania Superior Court upheld the [t]rial
[c]ourt’s discretion as to whether or not to allow a
minor child to testify in open court at a custody
hearing or to be interviewed by the Judge in
chambers. T.D. v. E.D., 2018 PA Super 235, 194 A.3d
1119 (2018) ([f]ather argued that the trial court erred
in not interviewing Child with regard to flying as an
unaccompanied minor, but the Superior Court
disagreed and affirmed that the trial court did not
abuse its discretion in such matters).
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Moreover, in prioritizing a child’s best interest, there
are several instances that would warrant keeping a
child away from the court when the child’s
participation is not necessary. The stress and emotion
involved in coming to court to testify, even for an
adult, particularly about situations involving children
and their parents, could have an adverse effect on a
child. Placing a child in a position of feeling like he or
she has to choose or opine on even a discrete custody
matter could aggravate relationships to the detriment
of the child’s best interest.
“[T]he presence of a child in court is not always
necessary or desirable. The experience may be
traumatic and disruptive. Consequently, the child
should not be required to attend a hearing or
conference in every case.” See Domestic Relations
Committee Explanatory Comment to
Pa.R.Civ.P. 1915.11 (1991); T.D., 2018 PA Super
235.
In this instance, Mother’s counsel submitted no
explicit offer of proof of what relevant testimony he
expected to elicit from the children or how the
testimony would be germane to the matters before the
[c]ourt. There is no evidence that either party asked
for their children to speak privately to the Judge on
any compelling custody matter.
At [the trial court’s] hearing on March 26, 2019,
Appellant’s counsel objected to the admission of the
CCES report into the record. The [c]ourt unmistakably
responded[,] “Well, counsel, with all due respect,
under the rules of this [c]ourt and the consent that
was signed by your client, a CCES report can be
introduced without the presence - in fact, the presence
of the evaluator is specifically prohibited under the
CCES process, so your objection is overruled. The
report is part of the record in this case.” (Transcript,
pp. 2-3).
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Therefore, the [c]ourt’s ruling on the admissibility of
the CCES report at the hearing put Mother’s counsel
on notice of his client’s consent to its admissibility.
He should have had ample opportunity to review the
“Consent and Waiver,” of his client as it was part of
the trial record. Perhaps being new in the case may
have caused Mother’s counsel to overlook the record
at [the] time of the hearing.
However, Mother’s continued pursuit of these
assertions in the face of the record, as well as
contradictory statutory and case law, where she does
not dispute her signature on the Consent[,] is
particularly bewildering to this [c]ourt. It appears
Mother, who had previously agreed to the CCES
evaluation[,] is suddenly unwilling to accept its
findings when not favorable to her view. This [a]ppeal
was filed despite the fact that it would perpetuate
acrimony and the negative effect it would likely have
on the best interests of the children. Moreover, it
underscores the need for Mother to undergo
co-parenting classes, as ordered, and not delay their
completion any further.
Trial court opinion, 5/16/19 at 4-7 (emphasis added).
Upon careful review, we find that the record supports the trial court’s
finding of contempt against Mother. Concerning the admissibility of the CCES
reports, we find no abuse of discretion on the part of the trial court, and we
adopt its reasoning as this court’s own. (See trial court opinion, 3/16/19 at
4-5.) Mother, who was counseled, signed the Consent and Waiver in the
November 23, 2015 and February 6, 2018 orders for the parties to participate
in CCES, and thereby consented to the use of the CCES reports in litigation
proceedings. To the extent that her present counsel attempts to cast the
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Consent and Waiver portion of the trial court’s orders as a contract of
adhesion, this issue is not properly raised before this court, as it was not raised
in the trial court. See Pa.R.A.P. 302(a) (providing that issues not raised in
the lower court are waived, and cannot be raised for the first time on appeal).
Likewise, for reasons expressed in the trial court opinion regarding
Mother’s second issue, the trial court did not abuse its discretion in considering
the Children’s statements as set forth in the CCES reports. (See trial court
opinion, 3/16/19 at 5-7.) Mother and her counsel had notice of the CCES
reports and Father’s potential use of the content of the reports at the hearing.
She had an opportunity to be heard regarding the admission into evidence,
and the court’s consideration, of the statements that the Children made to the
CCES evaluator that were part of those reports. As discussed in the trial court
opinion, Mother’s counsel failed to present the trial court with any necessary
reason for the Children to testify in court. We agree with the reasoning in the
trial court’s opinion. (See trial court opinion, 5/16/19 at 5-7.)
We find there is competent evidence in the record to support the trial
court’s credibility and weight determinations, and the trial court’s findings
regarding contempt are not unreasonable. We, therefore, affirm the April 22,
2019 order.
Finally, we address Father’s requests, made in his brief on appeal and
motion for post-submission communication, for this court to award his counsel
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fees to him and to order Mother to pay the costs of litigation. In so doing, we
grant his request for post-submission communication.
In its Rule 1925(a) opinion, the trial court addressed Father’s request
for counsel fees as follows.
The third issue before the Superior Court is whether
Father is entitled to an award of reasonable attorney
fees pursuant to Pa.R.A.P. 2744. A reasonable
attorney’s fee may be granted where an appeal is
frivolous or results from vexatious conduct. Pa.R.A.P.
2744. An appeal is frivolous where it lacks any basis
in law or fact. Marino by Marino v. Marino, 411
Pa.Super. 424, 601 A.2d 1240, 1250 (1992), citing
Smith v. Corn., Pennsylvania Bd. of Prob. &
Parole, 524 Pa. 500, 506, 574 A.2d 558, 562 (1990).
Likewise, when identifying a frivolous appeal, our
Superior Court has held that they must determine
whether [the] appellant’s arguments will likely
succeed and whether continuation of the contest is
reasonable. Com. Dept of Transp. v. Springbrook
Transp., Inc., 390 Pa.Super. 308, 568 A.2d 667(1990). There, the [Superior Court] found that [the
appellant] should not have filed an appeal as “[i]t
ignored well-settled precedent and had no likelihood
of success.” Id. Consequently, an award of attorney’s
fees to appellee Springbrook was found to be justified.
Therefore, we believe Father is entitled to attorney
fees and costs based on Mother’s pattern of obdurate
behavior, which has been demonstrated over and over
again. Her frivolous appeal serves merely as the
capstone of Mother’s non-compliance with custody
orders.
Overall, in making our decision, it has been clear to us
for quite some time that there is significant conflict
between the parties, and that there is almost no
willingness on the part of Mother to cooperate or
communicate with Father.
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J. A21034/20
Here, Mother blatantly violated the Custody Order of
June 25, 2018. Not only did she openly criticize Father
in front of their children, but also denied him the right
of first refusal for care of their children when she was
hospitalized. She claimed at the hearing that she was
in pain and under the influence of pain medication and
was therefore unable to make decisions. However, we
found that she in fact was able to make several
decisions including original and then modified
provisions for the care of the children by neighbors
and the decision to tell the children not to let Father
know of her hospitalization.
We found that there’s a complete lack of co-parenting
here and Mother does not respect Father, even in front
of their children. A clearer case of contempt is hard
to imagine, but to add injury to insult, Mother and her
attorney chose to appeal that Order on frivolous
grounds. Rather than complying with a Custody Order
that is in the best interests of their children, Mother
appears to require yet another reminder from our
judicial system that she does indeed share custody
with Father.
Trial court opinion, 5/16/19 at 8-9.
In her “Answer to Application for Post-Submission Communication,”
Mother asserts:
21. For the appellate court to determine frivolity,
the [c]ourt must find that “appellant’s claim
lacks any basis in law or fact.” Commw. v.
Reichle, 404 Pa.Super. 1, 589 A.2d 1140, 1143
(Pa. Super 1991).
Mother’s “Answer to Application for Post-Submission Communication”
at (unpaginated) 5 ¶ 21. In Reichle, to determine whether the appeal was
frivolous for purposes of determining whether to impose counsel fees and
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J. A21034/20
costs pursuant to Pa.R.A.P. 2744 requested by the appellee, we scoured the
record for whether the appeal had any basis in law or fact, relying on our
case law as precedent. Reichle, 589 A.2d at 1143. In that matter, we
determined that there was no basis in law or fact for the appellant’s counsel
to have filed the appeal and, accordingly, remanded the matter for the trial
court to determine the amount of, and to impose, the counsel fees and costs.
Id.6
In the present matter, we have scoured the record and conclude that
there was no basis in law or fact for Mother, who voluntarily, intelligently, and
knowingly entered the November 23, 2015 and February 25, 2018 custody
agreements/orders of court, with Consent and Waiver provisions, to behave
in a manner which did not comply with the custody order by interfering with
Father’s exercise of shared physical custody of the Children. Because of
Mother’s obdurate behavior, it became necessary for Father to continue the
custody litigation, including opposing Mother’s appeal of the contempt order
against Mother. As suggested by the trial court, Mother continued her pattern
of obdurate behavior by challenging the trial court’s admission of the CCES
6 See generally, Commonwealth v. Goodwin, 928 A.2d 287, 291
(Pa.Super. 2007) (en banc) (stating that, in assessing whether an appeal is
frivolous, it is “this Court’s duty to conduct its own review of the trial court’s
proceedings and render an independent judgment as to whether the appeal
is, in fact, wholly frivolous.” Id., quoting Commonwealth v. Wright, 846
A.2d 730, 736 (Pa.Super. 2004). See Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa.Super. 2015) (following Goodwin).
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J. A21034/20
reports as inappropriate, and raising the claims that the court’s admission of
the CCES reports violated her guarantee to due process, and that the trial
court abused its discretion in failing to have Children present to testify before
the court. We agree with the trial court that Mother’s appeal is frivolous.
Accordingly, we affirm the trial court order that found Mother in
contempt and imposed sanctions on her. As we agree with the trial court that
Mother’s behavior has been obdurate in this litigation and that Mother’s appeal
is frivolous, for the reasons stated by the trial court, we agree that Mother
should bear the costs of Father’s counsel fees and court costs. We, therefore,
remand the matter to the trial court for the determination of the amount of
Father’s counsel fees and costs, and to impose such on Mother. Reichle,
supra, 589 A.2d 1143.
Order affirmed; Father’s motion for post-submission communication
granted; case remanded for further proceedings consistent with this
Memorandum. Jurisdiction relinquished.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 12/15/2020
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